free law journal - volume 3, number 1 (18 january 2007)

More documents

Recommendations

Info

FREE LAW JOURNAL - VOLUME 3, NUMBER 1 (18 JANUARY 2007)Therefore, necessary defence is excusable in case of an actualattack (instantaneous or present), as well as in case of imminentattack. Whether the attack is imminent, is a question which isdetermined by court in each particular case, judging all thecircumstances of the committed act and the perpetrator. Theattack is imminent when there is a possibility (in time and place)of the close carrying out an attack 16 . But, it does not mean thatnecessary defence is excusable against future, undetermined inplace and time, but indicated attacks. Measures of precaution andpreventive protection against indicated or expected attacks areexcusable only if they do not go over the limits of necessarymeasures for that specific moment.2) Attack has to be aimed against a person, his legal property orlegal interest.-Attacked or endangered properties, in the sense ofnecessary defence, could be different. Most often, life andphysical integrity is being attacked, but sometimes it can beproperty, honour, reputation, dignity, moral. The object of attackcould be any legal property or legal interest. Law does notexplicitly state which are those goods that can be the objects ofattack in the sense of necessary defence. Attack can be aimedagainst any legal property of the attacked person, but also againstany legal property of some other physical or legal person. In thatway, attack can be aimed at violating the property of acorporation, facility or some other organization, but also againststate security and its constitution 17 .Therefore, necessary defence exists not only in case of protectingfrom the attack on a legal property, but also in case of protectingfrom the attack on any property of other person (physical or legal)if that person is not capable of protecting himself from suchattack. There are theories in criminal law, according to which16T. Živanović, Krivično pravo Kraljevine Jugoslavije, Opšti deo, Beograd,1935.p.23117B. Petrović, D. Jovašević, Krivično (kazneno) pravo Bosne i Hercegovine, Općidio, Pravni fakultet, Sarajevo,2005. p.146-14938BORISLAV PETROVIĆ PHD, AND DRAGAN JOVAŠEVIĆ - BASESFOR THE EXCLUSION OF THE CRIMINAL ACT IN CRIMINALLAW OF BOSNIA AND HERZGEGOVINA
FREE LAW JOURNAL - VOLUME 3, NUMBER 1 (18 JANUARY 2007)some cases of protecting from the attack are not considered to benecessary defence, but called “necessary help”. In any case, thescope and necessity of defence depend in the first place on thenature of legal property which is attacked or endangered.3) Attack has to be illegal.-Attack is illegal when it is not based onsome legal regulation and when it is not undertaken on the basesof some legal authorisation. Therefore, attack which isundertaken during exercising duty according to some legalauthorisation, is not illegal and necessary defence in that case isnot excusable. However, if an authorised person oversteps thelimits of legal authorisation, then such situation is changed intoillegal attack against which necessary defence is allowed. On theother hand, violation of necessary defence also changes intoillegal attack, in which case the attacker has the right for defence(because in this case he is in the state of necessary defence).The right for necessary defence exists no matter if the attacker isconscious of illegality of his attack or not. Namely, it is enoughthat the attacked person objectively realises the attack. It is of nosignificance whether the attacker is guilty or not, as well aswhether his act is punishable. Illegal attack could be undertakenby a child or by a mentally incompetent person. That means thatnecessary defence on necessary defence is not excusable. But,different situations in life can happen, when the attacked personanticipates the possibility of being attacked in certain place andtime because of his relationship with some person. If in suchsituations anticipated attack is undertaken, it is considered asillegal 18 .Even more controversial situation is when a person provokesattack. There is no dilemma if the attacked person had previouslyendangered someone’s integrity or property. The problem arisesif such attack is manifested verbally or only with concluding acts18M. Radovanović, Krivično pravo, Opšti deo, Beograd, 1975. p.9539BORISLAV PETROVIĆ PHD, AND DRAGAN JOVAŠEVIĆ - BASESFOR THE EXCLUSION OF THE CRIMINAL ACT IN CRIMINALLAW OF BOSNIA AND HERZGEGOVINA
Page 1 and 2: FREE LAW JOURNAL!VOLUME 3, NUMBER 1
Page 3 and 4: FREE LAW JOURNAL - VOLUME 3, NUMBER
Page 37: FREE LAW JOURNAL - VOLUME 3, NUMBER
Page 89 and 90:
FREE LAW JOURNAL - VOLUME 3, NUMBER
Page 91 and 92:
Page 93 and 94:
Page 95 and 96:
Page 97 and 98:
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124:
Page 125 and 126:
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
Page 133 and 134:
Page 135 and 136:
Page 137 and 138:
Page 139 and 140:
Page 141 and 142:
show all

free law journal - volume 3, number 1 (18 january 2007)

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?